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Conservation Easements

Resource Series

Preston Sullivan
NCAT
Agriculture Specialist
Published 2003
IP239

Abstract

Dede DeBruhl and Reggie Liddell, NRCS district conservationists, work on a conservation plan for farmland in the middle of an urbanizing area in Forsyth County.Photo by Bob Nichols, USDA Natural Resources Conservation Services.

Conservation easements are a useful legal tool to preserve farmland by limiting land uses. They are used to prevent development or to preserve scenic, natural, or other values the land may hold. Once in place, an easement runs with the deed, and, therefore, future landowners must abide by the terms of the agreement. Landowners either donate or sell a conservation easement to a recipient that holds the easement and is responsible for monitoring the terms of the easement for compliance. When easements are sold, the price is often the difference between the value of the land if used for development and its value under current use. When easements are donated, a federal income tax deduction can be taken. Typical easement holders are land trusts managed by non-profit organizations or governments. Governments often fund easement purchases by various means to meet local community objectives such as watershed protection or historic preservation. Several organizations are available to provide detailed information on conservation easements.

Question:
What do the Gettysburg battlefield, the viewscape from Mt. Vernon across the Potomac river, and New York City's Greenacre Park all have in common?

Answer:
The land they occupy is permanently protected from development through conservation easements.

Introduction

The purpose of this publication is to provide a brief overview of what conservation easements are, then direct the reader to other resources. Losing farmland to development hardly seems sustainable. Conservation easements provide a means to prevent development on a given parcel and to preserve farmland for a variety of reasons, including community esthetics, the desires of the community, intergenerational land transfer without inheritance taxes, and to maintain family traditions. Additionally, there are many acres of historic farms around the country that operate under conservation easements. Many thousands of acres of western ranching land have been placed under conservation easements to prevent development. These areas would be covered over with houses and ranchettes otherwise.

Conservation easements are legally binding, permanent deed restrictions (encumbrances) voluntarily placed on a parcel of land by the owner. The easement either permanently restricts the land to specific uses or prohibits certain specified uses. Easements create a written legal agreement between a landowner (grantor) and a conservation organization or government agency (grantee) that holds the easement and monitors the land for compliance. Grantees are typically foundations and charitable organizations known as "land trusts" that buy or receive through donations conservation easements that achieve their conservation mission of preserving land from development. County or city governments may buy easements as part of land-use-planning projects, for watershed protection, ecological significance, or to preserve land of historic significance. While the land protected by a conservation easement remains in private ownership and management, the qualifying non-profit organization or public agency provides monitoring and enforcement of the restrictions placed on the land.

Conservation easements contain specific land-use restrictions and so differ from typical easements a utility might use to put a power line across someone's property. Both the current and future owner's rights to certain specified land uses are relinquished, while others are retained. A useful analogy is to consider owning property as holding a bundle of rights to do something with the property, such as construct a house, or drill for minerals. (Diehl and Barrett, 1988) Placing a conservation easement on the property causes current and future landowners to give up one or more of the rights in the bundle. Which rights to give up are spelled out in the easement document. Easements may be applied to an entire parcel or portions of a larger holding.

Benefits of Conservation Easements

A primary reason people put their land into easements is that they want to prevent unwanted development on the land, yet retain ownership. Other reasons are to protect special or rare ecosystems from any type of consumptive uses such as timber harvesting or mining. Conservation easements often make intergenerational transfer of land easier by lowering or eliminating inheritance taxes or reducing the land's selling price to a level where the next generation can afford to buy it. Conservation easements give owners a way to control their land after they sell it—or even after death—which could be a benefit or detriment. Plenty of careful consideration should be given before granting a conservation easement—because it is permanent. The easement has to be recorded on the title, or it is not enforceable. A cash bond for your grantee or a backup grantee (government agency) generally needs to be in place to pay for monitoring the land for compliance to the terms of the easement. Competent legal and financial counsel should be sought before granting a conservation easement.

Many state, federal, and local programs use conservation easements to accomplish conservation objectives. For example, the Forest Legacy Program is a federal program designed to conserve resource values of forest land with national significance that are threatened with conversion to nonforest uses. The Farmland Protection Program, administered by USDA's NRCS agency, uses conservation easements to help farmers keep their land in agriculture. Other land trusts are formed with a specific parcel or two in mind. These smaller land trusts are often under-capitalized, may be less stable over the long term, and may need a backup grantee listed in the easement. American Farmland Trust and The Nature Conservancy are major easement holders, but they only accept easements that meet specific criteria, such as providing critical habitat, or are of some minimum size.

Pursuant to local governmental policy (may include farmland and forest land).

Historic preservation.

Diehl and Barrett (1988), expand on these five IRS resource categories. To qualify for resource category 1 (public recreation and/or education), the general public must have the regular opportunity for access to and use of the property. (Diehl and Barrett, 1988) There must be something about the property that makes the public want to use it, such as being attractive or containing resources of educational value. For resource category 2 (significant natural habitat), the property must be in a relatively natural state and either rare, endangered, or threatened species must be present; or the property must contribute to the ecological viability of a park or other conservation area; or it must otherwise represent a high quality native terrestrial or aquatic ecosystem. (Diehl and Barrett, 1988) Resource category 3 (open space for scenic enjoyment) lands must indeed be scenic, as well as easily seen by the public, and protection of the property must yield a significant public benefit. (Diehl and Barrett, 1988) Lands qualifying for resource category 4 (open space pursuant to government policy) require that protection of the property is pursuant to a clearly delineated federal, state, or local governmental conservation policy, and protection of the property must yield a "significant public benefit." (Diehl and Barrett, 1988) Finally, land preserved by easement under resource category 5 (historic value) must be a "historically important land area." The land must be either independently significant, deemed to contribute to a registered historic district, or must be adjacent to a property listed individually in the National Register of Historic Places where the physical or environmental features of the land area contribute to the historic or cultural integrity of the National Register property. (Diehl and Barrett, 1988)

Farmland can qualify as scenic and also include relatively natural wildlife habitat. Where farmland does not meet the scenic or wildlife habitat requirements, it must qualify under the tax code's open space test for "clearly delineated governmental policy" and "significant public benefit." (Diehl and Barrett, 1988) Regardless of these qualities, the principal objective of an agricultural easement is to preserve farmland for its crop and livestock productivity. Significant public benefit arises from the land's capability, a stable agricultural infrastructure, absence of conflict with adjacent non-farm uses, and the relative size of a given parcel. (Diehl and Barrett, 1988)

In many cases conservation easements are used to prevent development of land by limiting the land to agriculture uses. In some cases, commercial development related to the farming operation is allowed, such as building or replacing barns or other structures. Easement restrictions can be broad or narrow, depending on the farmer's interest and the objectives of the easement holder. Easement holders, such as the USDA Farmland Protection Program or the Nature Conservancy, may require that farmers implement specific conservation practices on their farms, while other easement holders do not require adherence to any specific farming practices. Overall, the easement depends on the landowner's wishes, as every easement is unique. Conservation easements may be designed to cover an entire parcel or a portion of it. Such would be the case if additional home sites were desired on the property. The grantor retains ownership, or the property can be sold, leased, or given away. All future owners must abide by the conditions of the easement—the easement runs with the land. The public does not have access to the property under an easement unless such rights are specifically allowed.

What are the Results of Placing an Easement?

Easements may affect financing of land, since the property loses its most valuable asset (development potential). Easements may also be difficult to place on land that is currently being financed. In some cases, up to 10% of the property value may be required to be placed in a trust for monitoring and enforcement purposes. (Wolfshohl and Leidner, 2001) Professional people are involved in drawing up the easement, including lawyers and sometimes appraisers, biologists, and foresters.

Most conservation easements are permanent unless they have a specified term. It is next to impossible to terminate a conservation easement. The easement is legally binding on present and future landowners, because the easement goes with the deed as an encumbrance.

How Conservation Easements Affect Land Value

Removing the development rights from land generally reduces its value. The value assigned to a conservation easement amounts to the difference between the land use prescribed by the restriction placed on it by the easement, and the value of the land if used for a higher-value purpose, such as development. The value is usually determined by a professional appraiser who determines the difference between fair market value of the property, using comparable sales in the area, and the land's value under the restrictions of the easement. Selling an easement is a way for an owner to receive the equity for the higher-value land use but retain the land for agriculture purposes. In the case of a donated conservation easement, the owner receives a tax advantage for donating the easement. The value of the easement may allow donors to deduct up to 30% of their adjusted gross income during the year of the charitable donation from their federal income tax. (Mill, 2001) Easement donations that are not fully deducted in the first year can continue to be deducted for the next five years. (Mill, 2001) Some states also allow state income tax deductions for donating conservation easements. Easement value in excess of the annual limit can be claimed for an additional five years past the donation year. Reductions in estate taxes and property taxes can also be realized from conservation easements.

Who are the People Holding the Easement?

Easements can be held by either nonprofit land trusts or by government agencies that protect the land directly through the establishment of the easement. Land trusts are conservation organizations directly involved in protecting land for natural, agricultural, historic, recreational, or cultural purposes. To achieve their purpose of protecting land, they use conservation easements, purchase land, or accept land through donations. They can be local, regional, statewide or national in their scope. Land trusts are typically structured as non-profit organizations, which gives them the advantages of prompt response time, fewer regulatory/statutory restraints, confidentiality, a tax exempt status, and professional stewardship services. (Schear and Blaine, no date)

Public agencies perform a function similar to private land trusts' in states where the laws are structured to allow them to hold conservation easements. Public agencies have the advantages of needing less time and paperwork to get started and having a higher probability that they will continue to serve their easement monitoring function into perpetuity. Some states require that both a non-profit and a public, local, or state agency hold conservation easements to assure maximum protection for lands under easement. This situation would be considered a back-up grantee, where the state agency serves as a backup to the non-profit organization in the event the grantee wants or has to transfer the easement. If the easement was a tax-deductible gift, the IRS requires that the new easement recipient be qualified to hold easements under the relevant state and federal laws, and the transferee must agree to continue to enforce the easement restrictions. (Diehl and Barrett, 1988) Some landowners like the idea of granting an easement to an organization that has a larger entity backing it up—it provides more assurance. The key is to pick an organization that is stable and that you can trust. The easement holder must be stable and have enough resources to monitor and enforce the terms of the easement. Examples exist of land under easement being purchased and used for development, since the new owners were either not made aware of the easement or the easement was not enforced because the holder did not have sufficient resources to do so. (Hill, 2002, American Farmland Trust, 2001)

More than 1200 land trusts operate in the U.S. (Land Trust Alliance Web site) As of Dec. 31, 2000, 6,225,225 acres of land had been protected by local and regional land trusts—a 226 percent increase over the past 10 years. (National Land Trust Census Web site) Land trusts range from small operations using all volunteer staff to larger ones having many staff, a board of directors, and large memberships. Some of the more well-known land trusts are Trust for Public Land, The American Farmland Trust, and The Nature Conservancy. Some land trusts exist for a specific tract of land and consequently are quite small. Two of the modest-sized land trusts are The Minnesota Land Trust and Vermont Land Trust. Contact information for these land trusts can be found in the Additional Resources section.

Monitoring and Enforcement

Monitoring and enforcing the terms of a conservation easement require a serious commitment from the easement holder (the grantee—land trust or government agency). These commitments, and adequate funding in the form of an endowment or bond, need to be made at the time the easement is established to claim an IRS deduction. Funding for monitoring purposes can come from several sources. In some cases the grantor also supplies a cash bond for easement monitoring. In some cases stock or life insurance policies are placed in trust until the owner dies and are then used as monitoring funds. Some government agencies accept easements without extra funding for monitoring. Some easement trust administrators raise monitoring money from the public or philanthropic foundations. Monitoring routinely involves an annual inspection of the land to assure that the conditions of the easement are being upheld. If the easement is breached, the holder will take whatever actions are necessary, including legal action, to get the land back into compliance. The landowner retains full rights to control and manage the property within the conditions of the easement. Other than monitoring for compliance, the easement holder has no other management responsibilities and no direct control over the land.

Examples of Government Incentive Programs

Forest Legacy Program
The Forest Legacy Program conserves forestland of regional and national significance, that is threatened with conversion to nonforest uses. The U.S. Forest Service and its partners, working with willing landowners to accomplish the conservation objective, use conservation easements or buy land. The program assures traditional uses of private lands, and public values of forestlands are protected for future generations. It protects wildlife habitat, preserves watershed functions, and maintains recreational capacity of the lands put into the program. More than 20 states already have active programs underway, and 10 or more states are developing plans. As of 2000, 111,290 acres had been added to the Forest Legacy Program at a cost of $27 million.

P.A.C.E. programs
PACE stands for Purchase of Agricultural Conservation Easements. PACE programs compensate landowners for placing land-use restrictions on their property, typically by selling development rights to PACE. These programs are administered by state or local governments, or by organizations. Landowners participate voluntarily. Depending on the intent of a given PACE program, it can protect resources for agricultural or ecological purposes. In many cases the demand for PACE funds exceeds their availability, resulting in waiting lists and delays or missed opportunities to protect land. (Anon., 1998)

Funding for PACE programs typically comes from general obligation bonds, property taxes, real estate transfer taxes, sales taxes, annual appropriations, federal funds, and other sources. As of spring 2001, there were at least 41 independently funded PACE programs in 14 states. (Anon., 2001a) That same year at least 20 states had state-level PACE programs. (Anon., 2001b). To learn more, contact the American Farmland Trust (see the Additional Resources section) and request their Fact Sheets on PACE programs.

Farmland Protection Program (FPP)
The FPP helps farmers and ranchers keep their land in agriculture through voluntary means. The program provides matching money to state, tribal, or local governments and non-profit organizations with ongoing farmland protection programs to buy conservation easements. To get funding, the landowner submits an application to state, tribal, or local government or a qualifying non-profit organization that has an existing farmland protection program. FPP is funded through the Commodity Credit Corporation. (NRCS, 2002) Through 2001, more than 108,000 acres have been protected in 28 states. (NRCS, 2002) New language in the 2003 Final Rule for the Farm and Ranch Lands Protection Program links land protection to farmland transfer to next-generation farmers. With the new rule, farms saved from development can remain viable farms. Now NRCS can place a higher funding priority on farms or ranches that have a farm succession plan established to encourage farm viability for future generations. To learn more about the Farmland Protection Program, visit your local USDA Service Center listed in the phone book under U.S. Department of Agriculture.

Easements in Action

The following two summaries come from an article published in Progressive Farmer. For a full-length story see: Wolfshohl, Karl, and John Leidner. 2001. When conservation easements help. Progressive Farmer. July. p. 20-23.

Fred and Vera Shield own a 6700-acre ranch near Austin, Texas. Even though suburban development encroaches on their borders, the Shields would like to preserve the land for their daughter Patricia Ayers and her husband Bob. To do this, they sold conservation easements on the ranch. Donations of easements are not uncommon in Texas, but in this case the city of Austin paid the Ayres family for an easement on 1,676 acres to protect an aquifer recharge area. In addition to their sold easement, they donated a second one to the Nature Conservancy of 4,700 acres that, under the easement, can never be used for residential or commercial development. They retained the right to their ranching operations and hunting. Rather than pay taxes on the fair market value of the land with 2000 homes on it, they have reduced the value to around 60% of what it was. (Wolfshohl and Leidner, 2001)

Colorado ranchers Cathy and Mike McNeil are working with 27 neighbors to put 15,000 acres into conservation easements. This effort will protect Rock Creek that flows through a scenic part of southern Colorado. Rock Creek is one of the remaining undeveloped stream corridors in the San Luis Valley. The McNeils plan eventually to put all their land into conservation easement, but for now they are putting just 480 acres into the Rock Creek project. Also in their area, a valley-wide effort called the Rio Grande Headwaters Trust seeks to protect farming families and farmland. The project will involve hundreds of thousands of acres of development rights being purchased. (Wolfshohl and Leidner, 2001)

The following summary comes from an article published in Holistic Management In Practice. For a full-length story see: Howell, Jim, and Daniela Howell. 2001. From here to eternity—redefining conservation easements. Holistic Management In Practice. Number 80. November-December. p. 6.

Jim and Daniela Howell were faced with the same dilemma as thousands of other family ranchers across the west—land prices skyrocketing far above the land's agriculture value. Realizing that the inflated value of their ranch near Montrose, Colorado, created estate taxes far above what their family could ever pay, they resorted to donating a conservation easement to the Black Eagle Regional Land Trust. Once the easement was in place, their peace of mind over the estate tax issue returned. People at the land trust worked with Jim and Daniela diligently by listening well and answering their concerns about the easement restrictions. There were no prejudices against any specific tool or land management practice put in the easement. The easement did have some criteria to guide its monitoring to ensure good stewardship of the land. To this end, the Howells attached a future landscape description to the easement. Since the easement began, a good relationship has continued with the land trust folks. The Howells keep them informed of their management decisions by provide them with long-term management plans for their ranch as well as any major infrastructure developments.

Next Steps

For those seeking further guidance on conservation easements, an Additional Resources section is provided below. Several organizations, including the American Farmland Trust and The Trust for Public Land, deal with conservation easements routinely. They can provide more literature and advice. Finally, seek reliable legal and financial counsel before proceeding.

Additional Resources

Organizations

American Farmland Trust is a nationwide nonprofit organization dedicated to protecting agricultural resources. AFT's mission is to stop the loss of productive farmland and to promote farming practices that lead to a healthy environment. Contact them at:

Trust for Public Land is a national nonprofit organization working exclusively to protect land for human enjoyment, recreation, and spiritual nourishment, and to improve the health and quality of life of American communities.

The Land Trust Alliance promotes voluntary land conservation and provides the information, skills, and resources that land trusts need to conserve land for the benefit of communities and natural systems.

Land & People, a magazine published twice each year for Trust for Public Land supporters and partners. It contains articles and interviews on land conservation topics and on TPL projects nationwide, as well as essays on the importance of conserving land for people and the meaning of land in people's lives.

American Farmland Trust Publications

Your Land is Your Legacy. 2002. ($9.95) Written especially for farmers and ranchers, this publication answers all your estate planning questions and incorporates tax changes from the 2001 Tax Relief Reconciliation Act.

Saving American Farmland: What Works. 1997. ($34.95) A comprehensive guidebook that presents the latest research, tools, and strategies on farmland protection.

Sharing the Responsibility: What Agricultural Landowners Think About Property Rights, Government Regulation and the Environment. 1998. ($9.95) A nationwide survey of farm, ranch, and forest landowners reveals their beliefs about sharing the cost of environmental protection with the general public and includes recommended policies, regulations, and incentives to protect these resources.

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